Scientists at NASA’s Jet Propulsion Laboratory today released NASA documents that support their demand that acting Solicitor General Neal Katyal retract remarks made before the United States Supreme Court on October 5 in the case of Nelson et al. v. NASA et al (09-530). The case involves NASA’s effort to force JPL employees, who do no classified work and who are not civil servants, to undergo unconstrained background investigations into the most intimate details of their personal lives.

General Katyal, who was arguing that the Court should overturn an injunction protecting the plaintiffs from the unconstrained investigations, overstated the ease with which NASA contractors can access the space shuttle. As part of Katyal’s justification for NASA’s unlimited background investigations of low-risk JPL employees, he told the Court that the identification badge that NASA proposes to issue to the employees is “such an important credential that it would allow them to get within, for example, 6 to 10 feet of the space shuttle as it’s being repaired and readied for launch.”

Robert M. Nelson, on behalf of the JPL employees, wrote letters to Attorney General Eric Holder and NASA Administrator Charles Bolden requesting a public retraction of General Katyal’s claim that low-risk employees could get within 10 feet of the shuttle. The scientists said that NASA’s own rules ensure that no identification badge of any type is alone sufficient to permit employees to get near the shuttle. Justice Department spokeswoman Tracy Schmaler refused to make a correction and told the Washington Post, “The solicitor general’s office worked closely with NASA officials in preparing for this case, including the use of the space shuttle example in the argument, and in no way misled the court.” NASA declined to correct Katyal’s statement, but neither did NASA confirm it. NASA spokesman Michael Braukus told the Post that contractors might be able to get within 6 to 10 feet of space shuttles during special “inside facility tours” at the Kennedy Space Center. However, the JPL scientists pointed out such tours are specially arranged and tightly supervised. Contrary to Katyal’s statement, the tours are not available to anyone who has the ID credential that he described.

As of today, the Department of Justice and NASA have still refused to correct Katyal’s error.

Today, the JPL scientists released the official NASA rules and procedures regarding access to the Shuttle. The rules demonstrate clearly that Katyal, Schmaler and Braukus are wrong in matters pertaining to unescorted access to the space shuttle by NASA employees and contractors.

Robert M. Nelson, a Senior Research Scientist at JPL with three decades of experience in NASA scientific missions, said, “The NASA rules for unescorted access to the launch vehicles such as the space shuttle clearly state that the individual must have:

A request from a supervisor stating justification of a need for access,

A medical and psychological evaluation,

A complete review of all previous NASA background evaluations and a fully updated background file, and

A complete review of personnel employment records and Inspector General files.”

Nelson added that, “The Solicitor General’s ignorance of NASA procedures might be understandable given the generally low level of knowledge that Justice Department Officials have exhibited throughout this case. But NASA’s tepid and contrived response now suggests the agency is working with the Department of Justice in an attempt to mislead the Supreme Court by bolstering Katyal’s dissemination of false information.”

Konstantin Penanen, another JPL scientist, said, “It is clear that what NASA has in mind is escorted, screened access of pre-approved personnel, whether or not they have the credential. This applies equally to contractors in non-federal facilities who are not required to comply with HSPD-12 badging requirements. It also applies to a number of VIPs who visit to look at the shuttle both from outside and from inside. DOJ’s statement to the court makes it sound as if access is unescorted and without further screening, evenwhere a potential for harm exists. NASA regulations do not allow that. If this is not misleading the court, it is hard to imagine what in DOJ’s eyes would be.”

Susan Foster, a science writer with over four decades of experience at JPL added, “The NASA I grew up with highly valued its integrity. One of NASA’s core values has been to ‘embrace truthfulness and trust, and to have the moral courage and obligation to be open, honest and ethical in all that we do.’ Even though we have serious disagreement over NASA badging practices, I had believed that the government would present their case honestly. It is painful to learn that NASA and the Department of Justice seem to be willing to abandon these values in their efforts to trample on the civil liberties of NASA contractor employees.”

Larry D’Addario, a JPL principal engineer, said, “At all NASA facilities, including JPL, great care is taken to protect all flight hardware. The primary objective is to avoid accidental and unintentional damage or contamination. Access is restricted to those who have the proper training, a bona fide need to be there, and appropriate authorizations. Having the ID credential is not enough.”

Dennis Byrnes, Chief Engineer for Flight Dynamics at JPL, said, “Yesterday I wrote to John Shannon, NASA Program Manager for the Space Shuttle Program, requesting that he clarify this patently misleading statement by acting Solicitor General Katyal. The stated position is so outrageous that any rational, honest public official should be quick to correct it, regardless of any personal feelings on the issue before the Court.”

Nelson added, “The findings we are releasing today reaffirm the position we presented to Attorney General Holder last week when we asked for a retraction of Katyal’s remarks. Katyal’s statement to the Court was untrue and represents false information presented to the highest court in the nation. It is an insult to all of our co-workers at Kennedy Space Center who labor continuously to protect the safety of all NASA launch vehicles—particularly the space shuttle. At JPL we have an open campus-like research atmosphere with very few tightly controlled, high security areas. Obviously, our colleagues at the Cape work in an environment that must be much more closely monitored–and for good reason. The safety of the public and of our astronauts is always foremost in the mind of every NASA worker.”

The following official NASA and federal policies and procedures govern access to the shuttle and other launch vehicles.

also available at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=5f7cda000f4b0d25d452cf34f91e6585&rgn=div5&view=text&node=14:5.0.1.1.15&idno=14#14:5.0.1.1.15.5

Excerpts:

(a) The Space Shuttle and the Space Station Freedom are included in the NASA National Resource Protection Program as delineated in NMI 8610.22, “National Resource Protection Program…. Since they will contribute significantly to ensuring a scientifically, technologically, and economically strong and secure nation, program reliability, operational and safety considerations require that stringent measures be taken to provide for the protection of the systems…

(a) Only those persons who are certified under the PRP will have unescorted access to mission critical space systems areas, be assigned to, employed in, or retained in mission critical positions/duties. While this regulation provides for unescorted access to mission critical space systems areas, it does not preclude the need for escorting of PRP personnel who do not have security clearances in classified areas. The certification will be based on an evaluation of screening data which is to be undertaken by a trained evaluator using evaluation guidance and criteria contained in Federal Personnel Manual (FPM) chapter 731 and Attachment B (Adjudication Guidelines) of NMI 8610.13.4 The need for impartial and consistent evaluation of data based on a set of standards is considered paramount to the successful implementation of this program.

(b) Determination of suitability for assignment to mission critical positions/duties will be made on the basis of the following criteria:

(1) Supervisory nomination (per requirements of §1214.505(c) of this part) and assurance of ability to perform mission critical duties as evidenced by performance during training and while on the job.

(i) The guidelines and requirements of the NASA Occupational Health Division as required to ensure adequate health for competent and reliable performance; and

(ii) Information developed by testing, review and other screening regarding an individual’s health, drug or alcohol abuse, or other factors which may reflect adversely on his or her cognizance, judgement, and ability to act reliably. Such information shall be considered “cause” within the meaning of this subsection.

(iii) All information obtained by medical or Employee Assistance Program evaluation is subject to federal and state statutes and regulations pertaining to the privacy and confidentiality of patient/client information.

(3) Evaluation by a NASA-designated investigatory authority including a review of the results of any National Agency Check (including a name check of the Federal Bureau of Investigation (FBI) fingerprint records) completed within the past 5 years. When the National Agency Check indicates that a more extensive investigation has been completed, the results of that investigation will also be reviewed.

establishes Agency-wide security program implementation requirements set forth in NASA Security Policy Directive (NPD) 1600.2 <http://nodis3.gsfc.nasa.gov/displayDir.cfm?t=NPD&c=1600&s=2E.” The procedures identify a NACI as the investigation level for low-risk designation, which is not sufficient for access to restricted areas.

Excerpt:

4.5.6c. Low Risk positions involve duties with limited relations to the Agency and its programs and operations and which have little affect on the efficiency of the Agency’s programs and operations.

4.5.6d(1)(b). The level of reliability checks or investigations range from a NACI to a full-field background investigation, depending upon the sensitivity of the information to be handled and the risk and magnitude of loss or harm that could be caused by the individual.

7.6.1.1. Restricted Area. An area in which security measures are taken to safeguard and control access to property and hazardous materials or to protect operations that are vital to the accomplishment of the mission assigned to a Center or Component Facility. All facilities designated as critical infrastructure or key resource shall be “Restricted” areas (as a minimum designation).

is a thorough, reasonable, and highly granular access directive that “ensures that security policies, regulations, and procedural requirements for security matters on NASA, Kennedy Space Center (KSC) are fully addressed.”

The NASA Desk Guide for Suitability and Security Clearance Processing

available at http://www.hspd12jpl.org/files/SuitabilitySecurityDeskGuide.pdf

states on page 31 that the Personnel Reliability Program requires Public Trust Positions (i.e., SF85P), a higher scrutiny level than NASA’s low-risk (SF85) designation for 97% of the employees (and 100% of the plaintiffs in Nelson et al. vs NASA et al.) at JPL.

Summary of Case and Contact Information

Nelson et al. vs. NASA et al. involves NASA’s effort to force JPL employees, who do no classified work and who are not civil servants, to undergo unconstrained background investigations into the most intimate details of their personal lives. Other issues raised by the case include the threat to intellectual freedom inherent in excessive background investigations, the unfettered nature of the investigations, and the requirement to waive privacy rights as a condition of employment. The Supreme Court will make its ruling within a few months.

The plaintiffs have received broad support for their legal actions, including amicus curiae briefs filed by the American Astronomical Society, the American Civil Liberties Union, The California Employment Lawyers Association, the Drug Policy Alliance, the Electronic Privacy Information Center, the Electronic Frontier Foundation and the Union of Concerned Scientists.

Further information and all court documents are at the website hspd12jpl.org

Posted on October 14, 2010

About Robert M. Nelson

Robert M. Nelson is a NASA research scientist who, after three decades, left the Jet Propulsion Laboratory after unsuccessfully challenging egregious national security regulations. He now continues his research at the Planetary Science Institute. He is also a member of the Board of Directors of the Southern California American Civil Liberties Union.

Wellness

Carole Bartolotto: The problem with concluding that GMOs are safe is that the argument for their safety rests solely on animal studies. These studies are offered as evidence that the debate over GMOs is over. Nothing could be further from the truth.

Environmentalism

Walker Foley: Elected officials seem to think there’s only one side of this property rights argument. The people who live in these communities have rights too, but the oil companies seem to have the jump on [the politicians’] side of the fence.